Net Neutrality and Your Right to Watch Netflix and YouTube

The Federal Communications Commission on Thursday took the first step in a net neutrality plan that could make it harder to access Netflix, Facebook and YouTube, or guarantee your access to those websites under certain circumstances.

The idea behind network neutrality is that Internet service providers such as AT&T and Verizon should allow online publishers to provide web-based services to consumers equally, and without favoring or blocking products or websites.

For example, the company that provides your Internet service shouldn’t charge you extra money to see your Facebook or Netflix pages, or charge companies like Google or The New York Times fees to allow you to view their websites.

The Commission, in a 3-2 vote on Thursday along party lines, approved a plan proposed by Chairman Tom Wheeler that contains two provisions about net neutrality.

Under Wheeler’s new plan, the FCC would consider allowing “paid prioritization,” a proposal that is being condemned by net neutrality supporters. This would allow Internet service providers to charge companies like Netflix and Google’s YouTube for “fast lane” access to consumers who watch shows like House of Cards or viral videos about heroic cats.

In theory, critics say these charges would be passed on to consumers in some form. In the case of the subscription-based Netflix, monthly subscription costs would go up. The fees also could post barriers to new companies that want to be the next Netflix or YouTube, but lack the money to pay for fast-lane access.

The second provision, which is being endorsed by net neutrality supporters, would allow the FCC to pursue reclassifying broadband services as a public utility. Under current regulations, the FCC has the power to tell a public utility to provide equal access and service to all of its customers, including websites and online services that are publishers.

In January 2014, FCC lost an important court case against Verizon that said the FCC couldn’t bar Verizon from charging fees to “edge providers” like Netflix and YouTube if customers wanted to watch the video services.

The legal setback led to the latest set of rule proposals from the FCC.

The Verizon v. FCC Net Neutrality case had been widely watched since 2010, when then-FCC commissioner Julius Genachowksi led the FCC’s efforts to make sure Internet service providers didn’t block or discriminate against services that competed with their own content offerings.

Verizon cried foul, since the FCC’s policy decision seemed to contradict earlier court rulings. Verizon also said the ruling forced it to provide unlimited bandwidth without compensation (as a Fifth Amendment Takings Clause violation). By some estimates, Netflix and YouTube consume about 40 percent of all Internet bandwidth in North America.

Verizon also made a First Amendment argument in January about its freedom to promote and publish content as an information service provider. The appeals court said that since it already decided that the FCC didn’t have the power to impose net neutrality policies on a business it hadn’t classified as a common carrier, the judges didn’t need to evaluate Verizon’s First Amendment case.

Comcast also agreed to observe net neutrality rules until 2018 as part of its NBC acquisition deal.

Supporters have also labeled the Net neutrality concept as the “First Amendment of the Internet.”

This week, a group of musicians including Roger Waters, Joe Perry, Eddie Vedder and Michael Stipe sent an open letter to Wheeler voicing their First Amendment concerns.

“Allowing broadband providers to control this once-open platform shifts power away from individual artists and creators and interferes with freedom of speech and expression. Unless the Commission restores strong nondiscrimination protections based on a solid legal framework, creativity, cultural commerce and free expression will suffer,” the group said.

“I’ve said that net neutrality is the most important free speech issue of our time. … large corporations won’t just have the loudest voices in the room. They’ll be able to effectively silence everyone else. Every small business they’d prefer not to compete with. Every blogger who publishes something they don’t like,” said Franken.

After February’s court decision, Internet Service providers said they had no interest in censoring content by blocking websites and services.

“Verizon remains committed to an open Internet that provides consumers with competitive choices and unblocked access to lawful websites and content when, where, and how they want. We have always focused on providing our customers with the services and experience they want, and this focus has not changed,” the company said in a statement.

For now, the FCC will take public comments on the new proposals for a four-month period. Among the five commissioners, there was sharp disagreement on the plan of allowing comment on two starkly different proposals.

Commissioner Ajit Pai, the agency’s senior Republican, said that Congress and not the FCC should settle the issue.

“Nothing less than the future of the Internet depends on how we resolve this disagreement,” Pai said. “A dispute this fundamental is not for us, five unelected individuals, to decide.”

In the end, more court challenges are expected, given the high stakes involved in the battle, and the interest of every major tech company in some part of the FCC’s rule-making decision process.